Constitutional Action: The Right to Change Employers

End Migrant Worker Unfreedom strategic litigation project

See 30-min presentation on YouTube

In Canada, individuals with foreign worker legal status, often employed within a private household or on a farm, face one or various federal measures, such as the issuance of employer(s)-restricted work permits or the imposition of employer-tying work contracts, that negate the right to change employers.

If the relationship ends with the employer-sponsor or group of employers-sponsors, the individual’s right to earn a living in Canada is immediately revoked*. Employer(s)-tied household and farm workers are, therefore, extremely reluctant to resign or do anything that might jeopardize their employment relationship – including refusing unsafe work or complain and seek justice in case of a right violation.

More specifically, social sciences confirm that employer-tied workers face a restriction of their freedom of movement and of their capacity to choose one’s place of residence as well as if and with whom to share it. They are discriminated on the basis of the country of origin. They are imposed a major psychological stress, and face barriers to the exercise of rights in general and to access to justice and the protection of the law in particular. They face higher risks of debt bondage and of physical and psychological harm: unhealthy work and residence conditions, work safety standards violations, discriminatory/psychological/physical/sexual harassment and assault, human trafficking, rape, as well as work-related illness, accident, and death.

Facing a state sanction if they are fired or resign (the immediate revocation of their right to work in the country), employer-tied workers are, according to the North American jurisprudence, placed in a legal condition of servitude. Foreign worker admission programs that integrate an employer-tying measure thus result in the consolidation of an unfree labour supply and employment regime – characterized by a reduced applicability of the rule of law.

The unique vulnerability to human right violations for employer-tied migrants has regularly been acknowledged during the last decades by various human rights NGOs and U.N. agencies. The legality of the most common form of contemporary employer-tying policies, the issuance of work permits restricted to specific employers, was challenged in court for the first time in 2006. In a unanimous decision, the Superme Court of Israel concluded that tied permits constitute an unjustifiable and thus illegal violation of fundamental rights:

The … worker … is prohibited from working for another employer (…). … [H]uman dignity is not satisfied. … The right to liberty, for its part, is violated. … [T]he ‘change of employer procedure’ … cannot negate this violation (…). … [T]he restrictive arrangement has created a modern form of slavery.

Supreme Court of Israel (2006)

Despite evidence of their devastating impact on workers’ rights, acknowledged also by Canadian tribunals, rights commissions, and parliamentary committees, the Canadian government refuses to end employer-tying measures – and in particular to replace restricted work authorizations with open ones. 

In this context, the RHFW is working to challenge the legal validity of employer-tying measures – on the basis that they restrict workers’ constitutional rights to liberty, security of the person and life, access to justice, and not to be discriminated on the basis of the country of origin – but cannot be justified in a free and democratic society.

In December 2021, a RHFW’s request for initial funding was granted by the Canadian Court Challenge Program and, since then, the association has been working to initiate proceedings, while securing in parallel the additional financial resources necessary for the success of our action.

This strategic litigation case is a highly significant one, both historically and globally. Canada and the world’s development is increasingly associated with international labour (im)migration. With the abolition of such archaic measures as household and farm – and more generally foreign – worker employer-tying, the success of this project will minimise future large-scale state violations of the fondamental rights of (im)migrants and families, as well as future unfree worker underclasses within our communities and societies.

For more information, see the 30-min presentation below, or contact us at info@dtmf-rhfw.org.

*In some cases, the right to stay is also immediately revoked; in the other cases, the search for a new employer-sponsor is temporarily authorized, but during this process, the worker will be at high risk of irregular employment, loss of access to permanent status, loss of legal status, human trafficking, deportation, and/or debt bondage.